1.
All American Telephone Co., Inc., e-Pinnacle Communications, Inc., and ChaseCom
(collectively, the CLECs) filed a formal complaint with the Commission under section 208(a) of the Communications Act of 1934, as amended (the Act).1 On January 20, 2012, the Commission denied that complaint in the Complaint Denial Order.2 Thereafter, the CLECs filed a petition for reconsideration or clarification of the Complaint Denial Order,3 under section 405(a) of the Act, and rule 1.106.4 For the reasons explained below, the Petition is dismissed on procedural grounds, and alternatively, denied on the merits.5

2.
At all relevant times, the CLECs purported to provide terminating interstate switched
access services to AT&T Corp. (AT&T), an interexchange carrier (IXC), pursuant to federal tariffs that the CLECs filed with the Commission.6 The CLECs charged AT&T for terminating interstate switched access services, but AT&T refused to pay, asserting that the CLECs were not providing such services in accordance with their federal tariffs.
3.
The CLECs sued AT&T in federal district court to collect the access charges billed,
asserting claims alleging, inter alia, that AT&T’s refusal to pay violated the CLECs’ federal tariffs, section 201(b) of the Act, and section 203(c) of the Act.7 Upon the CLECs’ request—to which AT&T objected—the federal district court referred the following issues, among others, to this Commission under the primary jurisdiction doctrine:
(i)
Did AT&T violate § 201(b), § 203(c), or any other provision of the Communications Act by refusing to pay the billed charges for the calls at issue?
(ii)
Did AT&T violate any provision of the Communications Act by refusing to pay the billed charges for the calls at issue and not filing a rate complaint with the FCC?8
4.
At the direction of Commission staff, the CLECs effectuated the court’s primary
jurisdiction referral by filing a formal complaint against AT&T under section 208 of the Act. The CLECs’ complaint alleges that, by refusing to pay the billed access charges rather than paying those charges and filing a rate complaint against the CLECs with this Commission, AT&T violated sections 201(b) and 203(c) of the Act.
5.
After the pleading cycle closed, the Commission released the Complaint Denial Order
denying the CLECs’ claims. Specifically, the Commission stated:
[T]he answer to both of the Court’s questions addressed in this Order is “no.” AT&T did not violate sections 201(b), 203(c), or any other provision of the Communications Act by refusing to pay the billed charges for the calls at issue, regardless of whether it filed a rate complaint with the FCC. Accordingly, the CLECs’ claims are denied.
Under section 208 of the Act, the Commission has authority to adjudicate only claims alleging that a carrier has somehow violated the Act itself. . . . [T]he Commission has repeatedly held that an allegation by a carrier that a customer has failed to pay charges specified in the carrier’s tariff fails to state a claim for violation of any provision of the Act, including sections 201(b) and 203(c) – even if the carrier’s customer is
(. . . continued from previous page)

another carrier. These holdings [the Collection Action Orders9] stem from the fact that the Act generally governs a carrier’s obligations to its customers, and not vice versa. Thus, although a customer-carrier’s failure to pay another carrier’s tariffed charges may give rise to a claim in court for breach of tariff/contract, it does not give rise to a claim at the Commission under section 208 (or in court under section 206) for breach of the Act itself.
* * *
Applying the foregoing precedent to the instant case, the CLECs’ claims that AT&T violated the Act must be denied. Each of the CLECs’ three claims hinges on the contention that either section 201(b) or section 203(c) of the Act requires AT&T to pay the CLECs’ tariffed access charges. In other words, each of the claims is exactly the kind of “collection action” that the Commission has repeatedly held fails to state a claim for violation of the Act.10

III.

DISCUSSION

6.
We have reviewed the CLECs’ Petition and Reply. All of the CLECs’ arguments either
(i) have been fully considered and rejected by the Commission in the Complaint Denial Order,11 or (ii) could and thus should have been made prior to the Complaint Denial Order.12 For example, to support their contention that a failure to pay allegedly tariffed charges constitutes a violation of the Act, the CLECs persist in relying on the same out-of-context snippets from old Commission orders13 that the Complaint Denial Order already distinguished or reconciled.14 The Petition offers nothing to undermine

the Complaint Denial Order’s conclusion. Accordingly, we summarily dismiss the Petition on procedural grounds.15
7.
Nevertheless, as an independent and alternative basis for this decision, we deny the
Petition on the merits to the extent described below. First, it appears that underlying the Petition is a concern that the Complaint Denial Order may deprive the CLECs (and other similarly-situated local exchange carriers) of any forum in which to pursue collection actions against AT&T (and other similarly-situated IXCs) to recover access charges allegedly due under federal tariffs.16 The Complaint Denial Order does no such thing. The Complaint Denial Order makes clear that “a customer-carrier’s failure to pay another carrier’s tariffed access charges may give rise to a claim in court for breach of tariff/contract . . . .”17 Thus, as even AT&T acknowledges, the Complaint Denial Order does not hinder the CLECs’ ability to prosecute their court claims for breach of their federal tariffs.18
8.
Second, we are perplexed by the CLECs’ request that we issue an order (i) reversing the Complaint Denial Order, (ii) holding that “the Commission lacks jurisdiction to hear the questions referred by the SDNY Court, and [(iii)] dismissing the complaint without prejudice.”19 After all, it was the CLECs who, over AT&T’s objection, successfully urged the federal district court to refer to the Commission the very questions we addressed in the Complaint Denial Order.20 If it is true, as the Petition strongly suggests,21 that the CLECs always understood the Collection Action Orders as precluding the Commission from ruling favorably on the merits of their claims, then it is troubling that
(. . . continued from previous page)

following reasons: (1) at least one federal district court had already noted that the Commission “ha[d] questioned the continuing validity and scope of the MGC decision” since its adoption, (2) the Commission had re-affirmed the Collection Action Orders at least six times, and noted the incongruity of MGC v. AT&T at least twice, and (3) the only question discussed extensively in MGC v. AT&T was not whether a failure to pay access charges was a violation of the Act, but “whether AT&T took the appropriate steps effectively to terminate the arrangement with MGC for the acceptance of originating access traffic.” It then expressly overruled MGC v. AT&T. Complaint Denial Order, 26 FCC Rcd at 731–32, para. 20.
15 See, e.g., 47 C.F.R. §§ 1.106(c)(1), (p)(1)–(3). The CLECs argue that the Complaint Denial Order is vague. See, e.g., Petition at ii–iii, 4, 22–24; Reply at 8–10 (claiming, among other things, that the Complaint Denial Order is “rife with internal inconsistencies” because it (1) creates in a complaint proceeding broad and dispositive legal principles that have industry-wide effect, (2) makes several unsupported statements, and (3) has been interpreted differently by various parties). However, the CLECs’ vagueness argument actually rests on the very same points that either the Complaint Denial Order already considered or that the CLECs could and should have made prior to the Complaint Denial Order. In other words, the CLECs’ assertions of vagueness really argue that the Complaint Denial Order is wrong, not that the Complaint Denial Order is ambiguous. Thus, the CLECs’ assertions of vagueness warrant summary dismissal for the same reasons that the rest of the CLECs’ arguments do.
16 Petition at 5–6, 16–17, 19; Reply at 2, 7–8.17 Complaint Denial Order, 26 FCC Rcd at 727, para. 10.18 AT&T’s Opposition at 2, 10–11, 18, 20–21. The CLECs also misread the Complaint Denial Order as holding thatone carrier’s failure to pay another carrier’s charges can never constitute a violation of the Act. See, e.g., Reply at 8. By its plain terms, the Complaint Denial Order pertains only to circumstances governed by section 203 of the Act. See Complaint Denial Order, 26 FCC Rcd at 726–28, paras. 9–11, 729, para. 14, 732, paras. 21–24.
19 Petition at iii, 10–12, 25; Reply at 3–5, nn.3, 10. 20 See Referral Order; see also All American Tel. Co., Inc. v. AT&T Corp., Memorandum in Support of Motion for Referral to Federal Communications Commission, Case No. 1:07-cv-00861-WHP (filed Nov. 30, 2009); All American Tel. Co., Inc. v. AT&T Corp., Reply Memorandum in Support of Plaintiffs’ Motion for Referral to Federal Communications Commission, Case No. 1:07-cv-00861-WHP (filed Dec. 22, 2009).
21 Petition at 7; Reply at 4–6; see Complaint Denial Order, 26 FCC Rcd at 728, para. 12.
4

Federal Communications Commission

FCC 13-36

the CLECs put the court, the Commission, and AT&T through the time, effort, and expense of this primary jurisdiction referral process regarding the questions resolved in the Complaint Denial Order.
9.
We give no credence to the CLECs’ contention that the Collection Action Orders apply
only to the Commission’s formal complaint proceedings under section 208 of the Act, and not to other Commission processes that the Commission could have employed, but chose not to employ, to resolve the questions referred by the court.22 Even if the Commission were to have decided the referred issues in a declaratory ruling proceeding as the CLECs desired, the substantive answer to the question whether certain conduct violates the Act would be the same.23 The answer does not turn on the procedural mechanism chosen by the Commission to address the question.24
10.
Similarly unfounded is the CLECs’ assertion that an IXC’s failure to pay allegedly
tariffed access charges can constitute a claim for violation of the Act cognizable in a court proceeding, even though the Collection Action Orders hold that the very same conduct does not constitute a claim for violation of the Act cognizable in a Commission proceeding under section 208 of the Act.25 Under the plain language of sections 206-208 of the Act,26 both the Commission and courts can award relief only upon finding a violation of the Act. Thus, just as the substantive answer to a question concerning construction of the Act does not turn on the Commission procedure employed to address the question, the substantive answer also does not turn on whether the Commission or a court is employed to address the question.
11.
That said, as we explained in the Complaint Denial Order and in our first point above, a
court’s authority does differ from the Commission’s in one relevant respect: A federal court canadjudicate a local exchange carrier’s claim seeking to enforce an IXC’s access charge payment obligations under a federal tariff, whereas the Commission cannot under the long-standing precedent that “collection actions” fail to state a claim for violation of the Act. And this distinction is reinforced, not undermined, by the six court decisions cited by the CLECs in their Petition.27 According to the CLECs, those court decisions contradict the Complaint Denial Order’s holding that an IXC’s failure to pay a local exchange carrier’s tariffed access charges cannot constitute a violation of the Act. We disagree. Those court decisions simply hold that, because federal tariffs emanate from federal law, i.e., section 203 of the Act, a federal tariff is itself tantamount to “federal law,” not merely a contract. Accordingly, a claim for breach of the payment obligations of a federal tariff “arises under” federal law within the meaning of 28 U.S.C. § 1331 and, in turn, such a claim falls within the subject-matter jurisdiction of federal courts.28 Those six court decisions are thus fully consistent with the Complaint Denial Order’s holding that a

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